IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-37

No. 49A20

Filed 16 April 2021

STATE OF NORTH CAROLINA

v.

FAYE LARKIN MEADER

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of 

the Court of Appeals, 269 N.C. App. 446, 838 S.E.2d 643 (2020), finding no error after 

appeal from judgments entered on 19 December 2018 by Judge R. Stuart Albright in 

Superior Court, Guilford County. Heard in the Supreme Court on 15 February 2021.

Joshua H. Stein, Attorney General, by Matthew Baptiste Holloway, Assistant 

Attorney General, for the State-appellee.

Bonnie Keith Green for defendant-appellant.

BERGER, Justice.

¶ 1 On December 19, 2018, a Guilford County jury found defendant Faye Larkin 

Meader guilty of felony breaking or entering a motor vehicle, misdemeanor larceny, 

and misdemeanor possession of stolen property.1 Defendant received a split sentence, 

and she was placed on supervised probation. The Court of Appeals determined that 

the trial court did not err when it declined to instruct the jury on voluntary 

 

1 The trial court arrested judgment on the possession of stolen goods conviction.
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intoxication. Defendant appeals. 

I. Factual and Procedural Background

¶ 2 At approximately 2:00 p.m. on November 22, 2017, defendant arrived at a

mental health counseling center in Greensboro, North Carolina. Law enforcement 

was contacted, and dispatch was informed that defendant was behaving as if she was 

intoxicated.

¶ 3 Earlier that afternoon, a family arrived for an appointment at the same 

counseling center. When the family returned to their vehicle after the appointment, 

they noticed that the driver’s side door was open, and items were missing from their 

vehicle. Among the missing items were an ammunition clip, a pair of sunglasses, and 

a drink koozie. In addition, a soda can, which did not belong to any of the family 

members, had been placed in a cupholder. The husband called law enforcement to 

report the incident. The wife returned to the counseling center, where she observed 

defendant drinking soda out of a cup. The wife recognized defendant because they 

had attended school together. 

¶ 4 The husband returned to the counseling center and informed an employee that 

someone had broken into his vehicle. He asked if anyone had “seen anything weird.” 

Defendant, who was still in the lobby of the counseling center at the time, “stood up 

and came over to where [the family was] and started talking” to them. Defendant

informed the husband that she knew who broke into the car and provided him with a 
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name. When the husband informed defendant that law enforcement had been 

contacted, defendant got “irate” and said, “no cops.”

¶ 5 When the husband walked past defendant to exit the counseling center, he 

“smelled alcohol somewhere.” Two other witnesses stated that defendant “appeared 

to be” or “seemed” intoxicated.

¶ 6 Caterina Sanchez, a therapist at the counseling center, testified that defendant 

“was disruptive in terms of not wanting to leave and not really listening to us [ b]ut 

she . . . wasn’t misbehaving or anything like that.” Ms. Sanchez testified that because 

of defendant’s behavior, Ms. Sanchez decided to call law enforcement and Chris 

Faulkner, the owner of the counseling center. 

¶ 7 Mr. Faulkner testified that, although defendant was “agitated,” she “was 

answering the [law enforcement officers’] questions . . . [and was being] fairly 

cooperative.” Mr. Faulkner advised defendant that she was banned from the 

property; when asked if she understood, defendant replied, “yes, sir.”

¶ 8 When officers arrived at the counseling center, they asked defendant why she 

was there. Defendant told them her father passed away the previous month and that 

she had been the victim of a domestic violence incident the day before. Defendant 

removed her pants to show officers a bruise on her thigh. 

¶ 9 As officers escorted defendant from the center, she became agitated and stated 

that she needed to collect her shoes, bra, and purse. When defendant failed to leave 
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the premises as instructed, defendant was handcuffed and escorted out. Defendant 

navigated a flight of stairs without assistance while her arms were handcuffed behind 

her back. 

¶ 10 A search of the premises failed to reveal missing property, and officers were 

prepared to release defendant when they noticed a shiny object in defendant’s jacket 

pocket. Defendant told officers that the object was a cellphone, but she pulled the 

missing ammunition clip from her pocket. Defendant was then arrested for felony 

breaking or entering a motor vehicle, misdemeanor larceny, and misdemeanor 

possession of stolen property. Once at the police station, the stolen drink koozie was 

located in defendant’s jacket pocket and the stolen sunglasses were found on the 

floorboard of the patrol car.

¶ 11 On September 24, 2018, defendant was indicted on one count of felony breaking 

or entering a motor vehicle, one count of misdemeanor larceny, and one count of 

misdemeanor possession of stolen property. On December 7, 2018, defendant gave 

notice of her intent to offer the defense of voluntary intoxication. On December 17, 

2018, defendant’s case came on for trial. The trial court denied defendant’s request

for a voluntary intoxication jury instruction. On December 19, 2018, the jury found 

defendant guilty on all charges. Defendant entered notice of appeal.

¶ 12 In denying defendant’s request for the instruction on voluntary intoxication, 

the trial court stated:
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That will be denied[.] . . . [T]he [c]ourt has listened to all of 

the testimony intently. I also reviewed State’s Exhibit 

Number 1, which was admitted without objection. And—

and there are three videos on State’s 1. The first video 

clearly shows the Defendant, and I understand that the 

witnesses in the light most favorable to the Defendant have 

testified that the Defendant was intoxicated. However, 

during the course of the video, I could hear the Defendant’s 

words. She was not slurring her words. She was speaking 

in easily understandable English. There were many 

questions that were asked of her to which she was 

responsive. It was clear that she was responsive and was 

aware of what was going on around her.

For instance, they asked her how she got there, and 

she said, well, they brought me. It was an appropriate

response to the question. She later identified, or attempted 

to identify the name of the people that brought her, but in 

any event, there are many other indications that she was 

responsive and aware of what was going on.

For instance, on the video you clearly hear Mr.

Faulkner, the owner of the business at issue, “You are not

allowed to come here any longer. You understand?” And 

her response was, “Yes, sir.” At one point one law 

enforcement officer, I believe it was a law enforcement 

officer, asked her for her name, and she clearly indicated it 

was Faye Larkin Meader. It was easily understandable. It 

was an appropriate response, a direct response to the 

question asked.

Although she was escorted out of the business at

issue by law enforcement officers, she was able to walk

under her own power. In other words, the officers didn’t

have to carry her, did not have to put her in some type of

wheelchair, simply directed her to leave, and that’s what

she did.

At one point, when she was sitting in the patrol car, 

she was directed or requested by the officer to put your feet 
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back in there for me, and the Defendant immediately 

complied, indicating she understood, was responsive and 

aware of what was going on. At one point, when she was 

attempting to articulate what happened, and how she got 

to the predicament she was in, she was complaining of 

another person selling marijuana and oxycontin.

Oxycontin is not a—it’s not a tongue-twister, but for

someone that was so completely intoxicated and without 

the ability to form intent, it would—it would seem to me to

be very hard to articulate such a word very clearly and

easily, as she did, as I witnessed in the video. At one point, 

she indicated she wanted her coat because it was cold

outside. Again, the point is she was aware of what was

going on, that it was cold, and that when you’re cold, you

need a jacket. That’s exactly what she indicated.

At one point, she was asked on the video what

happened to the laptop computer, or words to that effect,

and the Defendant immediately said she had no idea what 

the officer was talking about, which was, in fact, an 

accurate statement based on the facts of this case. Again, 

the Defendant was responsive and aware of what was going 

on around her, and answered that question immediately,

appropriately, and, as it turns out, accurately.

She was also—the Defendant was also aware of

what was going on around her because she knew she was

interacting with law enforcement officers. At one point she

said, “God bless you all. You all have a hard job.” In any

event, there is ample evidence to show that, again, she was

responsive and aware of what was going on around her.

. . . .

No one in this case testified that the Defendant was, 

in fact, drunk. Although the testimony was that she was 

impaired or intoxicated on some type of substance. The

substance has been unidentified.

¶ 13 In an opinion filed January 21, 2020, the Court of Appeals held that the trial 
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court did not err when it declined to instruct the jury on voluntary intoxication 

because defendant failed to produce sufficient evidence of voluntary intoxication. 

State v. Meader, 269 N.C. App. 446, 450, 838 S.E.2d 643, 646 (2020). The dissenting 

judge argued that substantial evidence was presented to support a voluntary 

intoxication instruction and the failure to instruct the jury on voluntary intoxication 

constituted prejudicial error which requires a new trial. Id. at 451–56, 838 S.E.2d at 

646–50 (Brook, J., dissenting).

¶ 14 Defendant argues that substantial evidence was presented to require a 

voluntary intoxication instruction. We disagree.

II. Standard of Review

¶ 15 To determine whether a defendant is entitled to a requested instruction on 

voluntary intoxication, this Court reviews de novo whether each element of the 

defense is supported by substantial evidence when taken in the light most favorable 

to the defendant. State v. Mash, 323 N.C. 339, 348, 372 S.E.2d 532, 537 (1988). 

“Substantial evidence is such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.” State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 

781, 787 (1990).

III. Analysis

¶ 16 “[T]he doctrine [of voluntary intoxication] should be applied with great 

caution.” State v. Murphy, 157 N.C. 614, 617–18, 72 S.E. 1075, 1076–77 (1911). A 
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defendant is not entitled to an instruction on voluntary intoxication “in every case in 

which a defendant . . . consum[es] intoxicating beverages or controlled substances.” 

State v. Baldwin, 330 N.C. 446, 462, 412 S.E.2d 31, 41 (1992). 

¶ 17 To obtain a voluntary intoxication instruction, a defendant

must produce substantial evidence which would support a 

conclusion by the judge that [s]he was so intoxicated that 

[s]he could not form [the specific] intent . . . . The evidence 

must show that at the time of the [crime] the defendant’s 

mind and reason were so completely intoxicated and 

overthrown as to render [her] utterly incapable of forming 

[specific intent]. In absence of some evidence of intoxication 

to such degree, the court is not required to charge the jury 

thereon.

Mash, 323 N.C. at 346, 372 S.E.2d at 536 (cleaned up). “[T]here must be some 

evidence tending to show that the defendant’s mental processes were so overcome by 

the excessive use of liquor or other intoxicants that he had temporarily, at least, lost 

the capacity to think and plan.” State v. Cureton, 218 N.C. 491, 495, 11 S.E.2d 469, 

471 (1940). “A defendant who wishes to raise an issue for the jury as to whether he 

was so intoxicated by the voluntary consumption of alcohol . . . has the burden of 

producing evidence, or relying on evidence produced by the [S]tate, of his 

intoxication.” Mash, 323 N.C. at 346, 372 S.E.2d at 536. “Evidence of mere 

intoxication . . . is not enough to meet defendant’s burden of production.” Id. at 346, 

372 S.E.2d at 536. 
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¶ 18 Defendant argues that witnesses testified about her bizarre behavior, that she 

appeared to be intoxicated, and that there was an odor of alcohol in the counseling 

center. In addition, defendant argues that testimony and police body camera footage 

established that she was out of touch with reality, hallucinating, talking to people 

who were not present, and unaware of her surroundings. However, while defendant’s 

actions were periodically unusual, the mere fact that “[a] person may be excited, 

intoxicated and emotionally upset” does not negate “the capability to formulate the 

necessary” intent. Id. at 347, 372 S.E.2d at 537 (cleaned up). Defendant has failed 

to present substantial evidence that she was “utterly incapable” of forming specific

intent. Id. at 346, 372 S.E.2d at 536. 

¶ 19 The record reflects that defendant did not slur her speech or hesitate when 

asked to provide biographical information, and defendant gave appropriate responses 

to the law enforcement officers’ questions when prompted. As the trial court stated, 

defendant “was not slurring her words. She was speaking in easily understandable 

English. There were many questions that were asked of her to which she was 

responsive.” In addition, when police arrived and arrested defendant, she was able 

to navigate a flight of stairs with her hands cuffed behind her back. As the trial court 

noted, defendant “was able to walk under her own power” and “officers did[ not] have 

to carry her, did not have to put her in some type of wheelchair, simply directed her 
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to leave, and that’s what she did.” Thus, even in the light most favorable to 

defendant, defendant has demonstrated, at best, mere intoxication. 

¶ 20 In State v. Goodman, 298 N.C. 1, 14, 257 S.E.2d 569, 579 (1979), the defendant 

was charged with first-degree murder, robbery with a dangerous weapon, and 

kidnapping. Defendant argued that his voluntary intoxication prevented him from 

premeditation and deliberation necessary for a conviction of first-degree murder.

¶ 21 In that case, the defendant shared a six pack of beer with two other men, 

consumed more beer at a bar less than thirty minutes before the victim got in the car 

with the defendant, and there was beer in the car the defendant was driving. Id. at 

13–14, 257 S.E.2d at 579. However, this Court stated that “[w]hether intoxication 

and premeditation can coexist depends upon the degree of inebriety and its effect 

upon the mind and passions; no inference of the absence of deliberation and 

premeditation arises as a matter of law from intoxication.” Id. at 12, 257 S.E.2d at

578 (citation omitted). This Court determined that, despite evidence that the 

defendant had been drinking, the defendant “was capable of premeditation and 

deliberation and could form the specific intent.” Id. at 14, 257 S.E.2d at 579. This 

Court went on to conclude that the trial court did not err when it declined to give an 

instruction on voluntary intoxication because there was “no evidence which showed 
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that defendant’s capacity to think and plan was affected by drunkenness [at the time 

he shot the victim].”

2 Id. at 14, 257 S.E.2d at 579. 

¶ 22 Such is the case here. The undisputed evidence tended to show that defendant 

was aware of her surroundings, and in control of her faculties, both before and after 

the police arrived. When the husband asked if anyone had “seen anything weird,” 

defendant stood up, walked over to the family whose vehicle had been broken into, 

and started talking to them. Defendant informed the husband that she knew who 

broke into the car and provided him with a name. When the husband informed 

defendant that law enforcement had been contacted, defendant became “irate” and 

said, “no cops.” 

¶ 23 Defendant understood that involving law enforcement was detrimental to her

interests. To conceal her involvement in the crime, she fabricated a story about 

another individual’s involvement. Based on these facts, viewed in the light most 

favorable to defendant, she cannot demonstrate that her “mind and reason were so 

completely intoxicated and overthrown as to render [her] utterly incapable of forming 

[specific intent].” Mash, 323 N.C. at 346, 372 S.E.2d at 536 (cleaned up).

 

2 One could argue that Goodman presents an even stronger argument for an 

involuntary intoxication instruction than the case sub judice in light of the amount of alcohol 

that the defendant was shown to have consumed. That an instruction was not required on 

the facts in Goodman provides support for this Court’s admonition that “the doctrine [of 

voluntary intoxication] should be applied with great caution.” Murphy, 157 N.C. at 617–18, 

72 S.E. at 1076–77.
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¶ 24 Because a voluntary intoxication instruction is only appropriate when the 

record contains evidence that permits the jury to determine that the defendant is 

unable to form the specific intent necessary to support a conviction for the crime 

charged, the trial court did not err when it declined to instruct the jury on voluntary 

intoxication.

AFFIRMED.
Justice HUDSON dissenting.

¶ 25 Because I would hold that the evidence, when taken in the light most favorable 

to defendant, was sufficient to warrant a jury instruction on voluntary intoxication, I 

respectfully dissent.

¶ 26 A defendant is entitled to have the jury instructed on voluntary intoxication 

when there is substantial evidence that the defendant was so intoxicated that he or 

she could not form the requisite intent. State v. Mash, 323 N.C. 339, 346 (1988). 

“When determining whether the evidence is sufficient to entitle a defendant to jury 

instructions on a defense or mitigating factor, courts must consider the evidence in 

the light most favorable to defendant.” Id. at 348. In addition, all reasonable 

inferences from that evidence must be drawn in defendant’s favor. Cf. State v. 

Chevallier, 264 N.C. App. 204, 214 (2019) (“In determining whether the trial evidence 

adduced was sufficient to instruct on a particular theory of criminal liability, we 

review the evidence and any reasonable inference from that evidence in the light most 

favorable to the State.”).

¶ 27 In the light most favorable to defendant, the evidence here tends to show that 

she was intoxicated and that she was unaware that she had taken another’s property. 

A rational trier of fact could conclude that defendant was so intoxicated that she could 

not form the requisite intent to commit the offenses charged.

¶ 28 At trial, the jury heard testimony from various witnesses who observed 

defendant at the counseling center. In addition, jurors were shown footage from the 
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responding officers’ bodycams and so were able to observe defendant’s behavior for 

themselves. This evidence tended to show that defendant was intoxicated at the time 

of the alleged crime. On the day of the incident, there were two calls to 911; the first 

call was by a therapist at the counseling center to report an “intoxicated person,” and 

the second call was by the vehicle owner to report a break-in to his vehicle. The first 

person who called 911 testified that defendant appeared to be intoxicated. Officer 

Fulp, who was on the team that responded to the first 911 call, testified that 

defendant appeared to be intoxicated or impaired by an illegal substance. And, at the 

scene, a witness told an officer that he smelled alcohol on defendant. 

¶ 29 There was also evidence, much of which has not been mentioned in the 

majority opinion, that defendant was acting in a manner consistent with intoxication. 

When Officer Fulp first approached defendant, she “started talking about getting beat 

up the night before by a guy named Sebastian,” and then defendant pulled down her 

pants in front of everyone. While speaking with the officers, defendant asked someone 

named Omar for her wallet, but no one named Omar was present at the time. When 

the owner of the counseling center asked the officers if they would continue their 

investigation outside, defendant “became loud” and had to be handcuffed. While the 

officers escorted defendant from the building, defendant claimed that she needed to 

get her bra from the bedroom, but the counseling center had no bedrooms. When she

was in the police vehicle being questioned by the officers, defendant lost control of her 
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faculties and urinated on herself. She then refused to get out of the police vehicle.

Once the officers coaxed her into exiting the vehicle, she produced a stolen 

ammunition magazine from her pocket saying it was her cell phone. Officer Fulp then 

placed defendant back in handcuffs and took her to the jail. From the jail, defendant 

phoned her aunt, who testified that she “sounded delirious.” We are required to 

consider the evidence and draw all reasonable inferences in the light most favorable 

to defendant. Accordingly, I would conclude there was substantial evidence that 

defendant was intoxicated at the time of the alleged crime.

¶ 30 The majority is correct that “[e]vidence of mere intoxication . . . is not enough 

to meet defendant’s burden of production.” Mash, 323 N.C. at 346. “[T]he defense of 

voluntary intoxication depends not on the amount of alcohol consumed, but on its 

effect on the defendant’s ability to form the specific intent [required by the statute].” 

State v. Cagle, 346 N.C. 497, 508 (1997). Evidence of exactly what substance 

defendant consumed, in what quantity she consumed it, and over what period of time

it was consumed, is not required or dispositive. A defendant is only required to show 

that her intoxication rendered her unable to form the requisite intent to commit the 

crimes charged. Mash, 323 N.C. at 346.

¶ 31 Cases in which a voluntary intoxication instruction has been denied have 

involved either evidence of purposefulness despite intoxication or a complete absence 

of evidence of the effects of intoxication on the defendant’s functioning. In Cagle, for 
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example, we concluded that the trial court had committed no error in refusing to give 

an instruction on voluntary intoxication when the defendant had consumed 

significant amounts of alcohol and smoked marijuana but had discussed his plan to 

rob the victim, took steps to follow that plan, repeatedly said, “go finish him, go kill 

him,” and planned an alibi. 346 N.C. at 508–09; see also State v. Geddie, 345 N.C. 73, 

95 (1996) (“[E]vidence showed only that defendant drank some liquor. There was no 

evidence indicating that defendant was so intoxicated as to be utterly incapable of 

forming the intent to kill.”); State v. Long, 354 N.C. 534, 538–39 (2001) (holding that, 

despite being “substantially impaired,” actions taken to hide his involvement in the 

crime demonstrated defendant could think rationally); State v. Robbins, 319 N.C. 465, 

509 (1987) (“[N]o evidence was presented showing that the defendant’s capacity to 

think and plan was affected or impaired by intoxication.”).

¶ 32 Likewise, in State v. Goodman, 298 N.C. 1, 12 (1979), we held that intoxication 

alone does not automatically lead to the inference that a defendant cannot form the 

requisite intent. There, we concluded that the trial court had not erred by refusing to 

give an instruction on voluntary intoxication because the evidence showed that 

despite defendant’s consumption of alcohol, he was able to drive, give directions, lead 

a group on a search through a neighborhood looking for items that had been stolen 

from his car, and participate in planning a scheme for disposing of the victim's body. 

Id. at 14. In addition, witnesses testified that defendant was “not in a drunken 
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condition” and we concluded that “[t]here was no evidence which showed that 

defendant's capacity to think and plan was affected by drunkenness.” Id.

¶ 33 Unlike those cases, from the evidence here one could infer that defendant was 

so intoxicated that she could not form the requisite intent to commit the crimes 

alleged. A reasonable juror could infer from the evidence that defendant was unaware 

of her surroundings, was completely unaware that she had taken items from the 

vehicle, and that her capacity to think and plan was affected by intoxication. For 

example, when the owner of the vehicle discovered the break-in and asked if anyone 

had seen anything, defendant approached the owner and told an unrelated story 

involving a man jumping from a third floor to punch her. Also, when the police arrived 

at the counseling center, defendant believed they had come to help her rather than to 

remove her from the premises. 

¶ 34 Additionally, defendant made no effort to conceal her actions. During a

conversation with the officers, she told them she did not have a cell phone. But a few 

minutes later, when an officer asked her about a bulge in her pocket, she told the 

officer the bulge was her cell phone. She then proceeded to grab the bulge and hand 

it over to the officer without reservation or reluctance. In fact, she had handed the 

officer an ammunition magazine—an item reported missing from the vehicle that had 

been broken into. When the officers reacted to the ammunition magazine as evidence 

of a potential crime, defendant got upset and seemed to believe all of a sudden that 
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she had handed them a weapon. She said, “I didn’t know [it was a gun]; I would have 

never handed it to you if I would have known it was a gun.” She also wore the 

sunglasses she was later charged with stealing in her shirt in plain sight of the 

officers and other witnesses. Although evidence of defendant being an unskilled 

criminal does not entitle her to a voluntary intoxication instruction, in the light most 

favorable to defendant this evidence tends to show that she could not have formed 

the intent to commit the offenses charged. This evidence goes beyond defendant being 

“excited, intoxicated and emotionally upset,” Mash, 323 N.C. at 347 (quoting State v. 

Hamby, 276 N.C. 674, 678 (1970)), and could support an inference of a real inability 

to comprehend the surroundings and events around her.

¶ 35 Pointing to evidence that defendant walked down a stairway while handcuffed, 

provided biographical information, did not slur her words, and responded to the 

officers’ questions, the majority concludes that this is not a “ ‘very clear case[ ]’ [where]

the intoxication was so severe that it could have negated [ ] defendant’s ability to form 

specific intent.”1 But the sum of the evidence here is, at best, equivocal. Substantial

 

1 I also note that our law does not require that a voluntary intoxication instruction be 

given only in “very clear cases.” The majority quotes from State v. Absher, 226 N.C. 656, 660 

(1946), where our Court quoted from a jury instruction on voluntary intoxication. In that 

instruction, the trial court said, “[a]s the doctrine [of voluntary intoxication] is one that is 

dangerous in its application, it is allowed only in very clear cases.” Id. at 660. Far from 

establishing a threshold requirement that the voluntary intoxication jury instruction only be 

given in very clear cases, our Court was merely quoting from a case in which the trial court 

determined there was sufficient evidence to warrant instructions on voluntary intoxication. 

The trial court then gave that instruction to the jury, warning the jury that the defense 

should only apply in clear cases.
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evidence supports the opposite conclusion, and our courts are required to consider the 

evidence in the light most favorable to defendant; in doing so, I would hold that the 

jury should have been instructed on voluntary intoxication.

¶ 36 Finally, I would conclude that the trial court’s failure to deliver the voluntary 

intoxication instruction to the jury was prejudicial. Having been given no instruction 

on voluntary intoxication, the jury was initially split regarding defendant’s intent 

and had to be reminded that they must reach a unanimous verdict. The jury 

continued to deliberate before eventually requesting the definition of “utterly 

incapable,” a term that pertains to the voluntary intoxication defense. The trial 

court’s response was that “utterly incapable” had no legal significance in this case. 

Ultimately, the jury returned guilty verdicts. Because the jury seemed particularly 

concerned with defendant’s ability to form the requisite intent, I would conclude that 

there is a reasonable possibility that had a voluntary intoxication instruction been 

given, the jury would have reached a different result.

¶ 37 When taken in the light most favorable to defendant, there is substantial 

evidence from which a reasonable juror could have found that defendant was so 

intoxicated that she could not form the specific intent to commit the offenses charged.

In addition, the trial court’s failure to deliver the instruction was prejudicial.

¶ 38 For the foregoing reasons, I respectfully dissent.

Justice MORGAN and Justice EARLS join in this dissenting opinion.